Mills v. Davis

New York Supreme Court

Mills v. Davis

48 N.Y. Sup. Ct. 415, 3 N.Y. St. Rep. 146

DecidedJuly 15, 1886

StatusPublished

This text of 48 N.Y. Sup. Ct. 415 (Mills v. Davis) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mills v. Davis, 48 N.Y. Sup. Ct. 415, 3 N.Y. St. Rep. 146 (N.Y. Super. Ct. 1886).

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Opinions

Cullen, J.:

The indorsements of the payment of interests, if proved to have been made at or about the time they bear date, were competent evidence to take the note out of the statute of limitations. (Roseboom v. Billington, 17 Johns., 182; Risley v. Wightman, 13 Hun, 163.) Neither the plaintiff nor his wife were disqualified from testifying, as to the time indorsements were made. The indorsements, though evidence of a personal transaction with the deceased debtor, were not themselves such transactions. For to make them competent evidence, it was not necessary to show that they were made in the presence of the debtor, nor at the exact time of the payment by the debtor. The theory on which such indorsements are admitted in evidence is not that the debtor was cognizant of them, but that if made before the obligation was outlawed, they are in the nature of declarations against interest. The rule allowing such indorsements as evidence, though severely criticised, seems settled by authority here and in England. The case of McLaren v. McMartin (36 N. Y., 88) is not in conflict with it. The note in that caso, even accepting as the fact the payment of 'interest indorsed on it, was outlawed before the death of the testator. It was held that the administrator could not, by a subsequent payment, revive the debt. The remarks of the learned justice delivering the opinion that the indorsements written by the payee were mere declarations in his own favor were obiter, and possibly may have referred to the fact that there was no evidence as to the time the indorsement was made. However, the case was decided upon the other ground.

The note jprima facie imported a consideration. If given without consideration, as claimed by defendant on this appeal, the defendant should have requested the referee so to find. There was no such request, and there is no exception in the case that presents [417]*417this question to us for review. Tke judgment should be affirmed, with costs.

Dykman, J., concurred.

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Cullen, J.:

The indorsements of the payment of interests, if proved to have been made at or about the time they bear date, were competent evidence to take the note out of the statute of limitations. (Roseboom v. Billington, 17 Johns., 182; Risley v. Wightman, 13 Hun, 163.) Neither the plaintiff nor his wife were disqualified from testifying, as to the time indorsements were made. The indorsements, though evidence of a personal transaction with the deceased debtor, were not themselves such transactions. For to make them competent evidence, it was not necessary to show that they were made in the presence of the debtor, nor at the exact time of the payment by the debtor. The theory on which such indorsements are admitted in evidence is not that the debtor was cognizant of them, but that if made before the obligation was outlawed, they are in the nature of declarations against interest. The rule allowing such indorsements as evidence, though severely criticised, seems settled by authority here and in England. The case of McLaren v. McMartin (36 N. Y., 88) is not in conflict with it. The note in that caso, even accepting as the fact the payment of 'interest indorsed on it, was outlawed before the death of the testator. It was held that the administrator could not, by a subsequent payment, revive the debt. The remarks of the learned justice delivering the opinion that the indorsements written by the payee were mere declarations in his own favor were obiter, and possibly may have referred to the fact that there was no evidence as to the time the indorsement was made. However, the case was decided upon the other ground.

The note jprima facie imported a consideration. If given without consideration, as claimed by defendant on this appeal, the defendant should have requested the referee so to find. There was no such request, and there is no exception in the case that presents [417]*417this question to us for review. Tke judgment should be affirmed, with costs.

Dykman, J., concurred.

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48 N.Y. Sup. Ct. 415, 3 N.Y. St. Rep. 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-davis-nysupct-1886.

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